News: Six special leave grants, including four on federal commercial law

Two-thirds of this sitting’s six special leave grants concern cases on federal commercial statutes, with the remainder involving the balance between judges and juries. The six cases that the Court will hear later this year are:

Andriotis v Victorian Building Authority[2018] FCAFC 24, which concerns the meaning of a federal provision (supported by referred state powers) for mutual recognition of regulatory laws. The plaintiff, after having his application as a waterproofer accepted in NSW, was rejected as a waterproofer by Victoria’s building regulatory authority, on the grounds of his lack of character (citing lack of candour in his NSW application.) However, the Full Court of the Federal Court ruled that the Victorian authority was obliged to register him because of his NSW registration, holding that Victoria’s ‘character’ test did not fall within a carce-out for local laws that regulate the manner of carrying on an occupation.

Commonwealth v Byrnes and Hewitt[2018] VSCA 41, which concerns the meaning of a federal provision (supported by referred state powers) on the distribution of funds from a bankrupt company. In 2014, a company that operated solely as a trustee had administrators appointed and, after receivership, had $1.7M in the bank. A five-judge bench of Victoria’s Court of Appeal ruled that the $1.7M was to to be distributed according to the statutory formula (and hence to the Commonwealth, which had funded nearly $4M of unsecured employee entitlements, ahead of other creditors.)

DPP Reference No 1 of 2017[2018] VSCA 69, which concerns whether a trial judge can invite a jury to acquit the accused before the completion of the trial (a ‘Prasad direction’.) After the prosecution presented its case in a trial for a domestic homicide, the trial judge invited the jury to acquit the accused on the basis of self-defence, in light of the lengthy history of serious violence from her husband, the victim. The jury took up the invitation after the defence case but before the addresses from counsel. A majority of the Court of Appeal refused the DPP’s request that it ban such directions in future cases.

Frugtniet v Australian Securities and Investments Commission[2017] FCAFC 162, which concerns a federal provision permitting federal offenders to not disclose some offences after 10 years. The Administrative Appeals Tribunal and the Federal Court upheld a decision by the federal corporate regulator to ban the plaintiff from engaging in credit activities, noting that he ‘carries with him a massive bag of dishonest conduct’. The Full Court of the Federal Court dismissed all of his complaints against the lower court decisions, including ruling that the Tribunal’s reliance on his spent criminal record fell within an exclusion covering ‘a court or tribunal… making a decision’.

Kobelt v Australian Securities and Investments Commission[2018] FCAFC 18, which concerns the legality of an outback ‘book-up’ system, where Anungu residents purchased second-hand vehicles by providing the dealer with their debit card, which the dealer used to withdraw Centrelink funds, retaining about half and leaving the other half for the purchaser to collect. The Full Court of the Federal Court held that the ‘book-up’ system was a credit service carried on in breach of a federal law but refused to find the system unconscionable, citing ‘book-up’s ubiquity and history, positive local economic effect, lack of undue influence or dishonesty, and the purchasers’ understanding of and consent to the arrangement.

McKell v R[2017] NSWCCA 291, which concerns the extent to which a trial judge can opine on the evidence. The defendant was charged with drug trafficking based on his suspicious involvement with three freight imports, two of which contained pseudoephedrine. A majority of the NSW Court of Criminal Appeal held, while the trial judge’s summing up contained unfortunate passages expressing skepticism of the accused’s explanations, the summing up as a whole was sufficiently balanced.

About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.